U.N. Committee Criticizes U.S. Record on Torture, Praises U.S. on Extraterritorial Reach of Treaty

On Friday, the United Nations Committee against Torture released its report (full text) on U.S. compliance with the Convention Against Torture. The Committee’s review included a 106-page report submitted by the United States and a two-day oral session with the U.S. delegation in Geneva earlier this month (transcript). The last time the Committee reviewed U.S. practices was in 2006 during President George W. Bush’s administration.

In the run up to the meeting in Geneva, the New York Times‘ Charlie Savage reported on the Obama administration’s deliberations over potential revisions to U.S. interpretations of the treaty. The Obama administration ultimately decided to shift to an “unequivocal yes” on two issues: whether the ban on cruel, inhuman, and degrading treatment applies to actions outside U.S. borders, and whether the treaty applies in war.

The Committee praised the United States for accepting that the treaty’s ban on cruelty applies to actions outside the territory of the United States (see below). More specifically, during the oral session the U.S. delegation had explained that in its view the treaty applies to areas outside of sovereign territory that the state “controls as a governmental authority,” and provided examples such as the naval base at Guantánamo and activity on U.S. registered ships and aircraft. The government did not, however, state that those areas were exhaustive. Reflecting on the U.S. statements, Professor Sarah Cleveland wrote, “the fact that the United States acknowledged that it exercises ‘control as a governmental authority’ over Guantanamo and U.S.-flagged ships and aircraft does not necessarily mean that it believes that such control is limited to these places. The United States has not stated what it considers to be the outer limits of this jurisdiction. Indeed, the government as a whole may not have a fully developed view on the question.” In today’s report, the Committee reiterated its view that the treaty applies extraterritorially to “‘prohibited acts committed not only on board a ship or aircraft registered by the a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas which a State party exercises factual or effective control.’”

The Committee also praised the U.S. recognition that the Torture Convention applies during armed conflict (see below). Acting State Department Legal Adviser Mary McLeod had told the Committee at the session in Geneva that “during situations of armed conflict, the law of armed conflict is the lex specialis and as such is the controlling body of law with regard to the conduct of hostilities and the protection of war victims”—a reiteration of the long-held U.S. position with regard to international human rights law. McLeod, however, also announced a shift from the prior US position in stating that the obligations of the Convention “remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the law of armed conflict.” Professor Cleveland wrote that an application of this new position was reflected in the delegation’s acceptance of an obligation in the Torture Convention to exclude any evidence derived from torture in legal proceedings, including Guantanamo Periodic Review Boards and military commissions.

In its report, the Committee criticized a U.S. reservation to the treaty (technically the US designated it an “understanding” rather than a “reservation”) which limits the definition of torture to “prolonged mental harm.” The Committee stated that this qualification “introduces a subjective non-measurable element which undermines the application of the treaty.” The Committee suggested that the reservation may be legally void: “the Committee recalls that under international law, reservations that are contrary to the object and purpose of a treaty are impermissible.”

The Committee’s concluding observations cover several other national security-related topics including the following:

Extraterritorial application of the Convention

The Committee stated (para. 10):

“The Committee welcomes the State party’s unequivocal commitment to abide by the universal prohibition of torture and ill-treatment everywhere, including Bagram and Guantanamo Bay detention facilities, as well as the assurances that U.S. personnel are legally prohibited under international and domestic law from engaging in torture or cruel, inhuman, or degrading treatment or punishment at all times, and in all places. The Committee notes that the State party has reviewed its position concerning the extraterritorial application of the Convention, and stated that it applies to ‘certain areas beyond’ its sovereign territory, and more specifically to ‘all places that the State party controls as a governmental authority,’ noting that it currently exercises such control at ‘the U.S. Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to U.S.-registered ships and aircraft.’ The Committee also values the statement made by the State party’s delegation that the reservation to article 16 of the Convention, whose intended purpose is to ensure that existing U.S. constitutional standards satisfy the State party’s obligations under article 16, ‘does not introduce any limitation to the geographic applicability of article 16,’ and that ‘the obligations in article 16 apply beyond the sovereign territory of the United States to any territory under its jurisdiction’ under the terms mentioned above.’

However, the Committee is dismayed that the State party’s reservation to article 16 of the Convention features in various declassified memoranda containing legal interpretations on the extraterritorial applicability of U.S. obligations under the Convention issued by the Department of Justice’s Office of Legal Counsel (OLC) between 2001 and 2009, as part of deeply flawed legal arguments used to advise that interrogation techniques, which amounted to torture, could be authorized and used lawfully. While noting that these memoranda were revoked by Presidential Executive Order 13491 to the extent of their inconsistency with that order, the Committee remains concerned that the State party has not withdrawn yet its reservation to article 16 which could permit interpretations incompatible with the absolute prohibition of torture and ill-treatment.

The Committee reiterates its view (CAT/C/USA/CO/2, para. 15) that the State party should take effective measures to prevent acts of torture not only in its sovereign territory but also ‘in any territory under its jurisdiction’. In this respect, the Committee recalls, as stated in its General Comment No. 2, that ‘any territory’ includes ‘all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. The reference to “any territory” in article 2, like that in articles 5, 11, 12, 13 and 16 [of the Convention], refers to prohibited acts committed not only on board a ship or aircraft registered by the a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas which a State party exercises factual or effective control’ (para. 16).

The State party should amend the relevant laws and regulations accordingly, and withdraw its reservation to article 16 as a means to avoid wrongful interpretations.”

In 2006, the Committee had reiterated its view that the Convention’s reference to “‘territory under [the state party’s] jurisdiction ‘ … includes all areas under the de facto effective control of the State party, by whichever military or civil authorities such control is exercised. The Committee considers that the State party’s view that those provisions are geographically limited to its own de jure territory to be regrettable.”

Relationship to the law of armed conflict

The Committee praised the government’s revised legal position (para. 6):

“The Committee welcomes the firm and principled position adopted by the State party with regard to the applicability of the Convention during armed conflict, stating that a time of war does not suspend the operation of the Convention, which continues to apply even when the State is engaged in an armed conflict.”

In 2006, the Committee had criticized the United States for adopting a position that more directly and broadly excluded application of the Torture Convention. In its 2006 report, the Committee stated: “The Committee regrets the State party’s opinion that the Convention is not applicable in times and in the context of armed conflict, on the basis of the argument that the ‘law of armed conflict’ is the exclusive lex specialis applicable, and that the Convention’s application ‘would result in an overlap of the different treaties which would undermine the objective of eradicating torture.’”

Transparency (including release of the U.S. Senate’s Torture Report)

The Committee stated (para. 11):

“The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes. While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006. It also regrets the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding. In this regard, the Committee is closely following the declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation programme (art. 2, 11 and 16).
…
The Committee calls for the declassification and prompt public release of the Senate Select Committee on Intelligence’s report on the CIA’s secret detention and interrogation programme with minimal redactions.”

Notably, earlier this week a group of seven UN human rights experts issued an Open Letter to President Obama “to urge you to agree to the release of the Senate Select Committee on Intelligence report on CIA interrogation practices in the most complete and comprehensible form possible.”

The Committee also criticized U.S. compliance with principles of transparency in a section on “abuse of State secrecy provisions” (para 15):

“The Committee expresses its serious concern at the use of State secrecy provisions and immunities to evade liability. While noting the delegation’s statement that the State party abides by its obligations under article 15 of the Convention in the administrative procedures established to review the status of law of war detainees in Guantanamo, the Committee is particularly disturbed at reports describing a draconian system of secrecy surrounding high-value detainees that keeps their torture claims out of the public domain. Furthermore, the regime applied to these detainees prevents access to an effective remedy and reparations, and hinders investigations into human rights violations by other States (arts. 9, 12, 13, 14 and 16).”

The Committee also specifically called “for the declassification of torture evidence, in particular Guantanamo detainees’ accounts of torture.”

Accountability

The Committee discussed “military accountability for abuses” as a distinct topic. In an unusual move, the Committee concluded that it found “itself unable to assess whether the State party’s actions are in conformity with the provisions of article 12 of the Convention”—the provision requiring investigation into instances where there is reasonable ground to believe an act of torture has been committed—citing a lack of information provided by the United States:

“[T]he Committee regrets that in the course of the dialogue, the delegation provided minimal statistics on the number of investigations, prosecutions, disciplinary proceedings and corresponding reparations. It has also received insufficient information about the sentences and criminal or disciplinary sanctions imposed on offenders, or on whether the alleged perpetrators of these acts were suspended or expelled from the U.S. military pending the outcome of the investigation of the abuses. In the absence of this information, the Committee finds itself unable to assess whether the State party’s actions are in conformity with the provisions of article 12 of the Convention (arts. 2, 12, 13, 14 and 16).”

In 2006 the Committee had criticized the U.S. record, stating that “despite the occurrence of cases of extraterritorial torture of detainees, no prosecutions have been initiated under the extraterritorial criminal torture statute.”

In a section entitled, “Inquires into allegations of torture abroad” (para. 12), the Committee: delved into the details of U.S. investigations:

“The Committee expresses concern over the ongoing failure to fully investigate allegations of torture and ill-treatment of suspects held in U.S. custody abroad, evidenced by the limited number of criminal prosecutions and convictions. In this respect, the Committee notes that during the period under review, the Department of Justice (DoJ) successfully prosecuted two instances of extrajudicial killings of detainees by Department of Defense and CIA contractors in Afghanistan. It also notes the additional information provided by the State party’s delegation regarding the criminal investigation undertaken by Assistant U.S. Attorney John Durham into allegations of detainee mistreatment while in U.S. custody at overseas locations. The Committee regrets, however, that the delegation was not in a position to describe the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed. Thus, the Committee remains concerned about information before it that some former CIA detainees, who had been held in U.S. custody abroad, were never interviewed during the investigations, casting doubts as to whether this high-profile inquiry was properly conducted. The Committee also notes that the DoJ announced on 30 June 2011 the opening of a full investigation into the deaths of two individuals while in U.S. custody at overseas locations. However, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt. The Committee shares the concerns expressed at the time by the UN Special Rapporteur on Torture over the decision not to prosecute and punish the alleged authors of these deaths. It further expresses concern about the absence of criminal prosecutions for the alleged destruction of torture evidence by CIA personnel, such as the destruction of the 92 videotapes of interrogations of Abu Zubaydah and ‘Abd al-Nashiri that triggered Mr. Durham’s initial mandate. The Committee notes that in November 2011 the DoJ determined, based on the Mr. Durham’s review, not to initiate prosecutions of those cases (arts. 2, 12, 13 and 16).

The Committee urges the State party to:

(a) Carry out prompt, impartial and effective investigations wherever there is reasonable ground to believe that an act of torture and ill-treatment has been committed in any territory under its jurisdiction, especially in those cases resulting in death in custody;

(b) Ensure that alleged perpetrators and accomplices are duly prosecuted, including persons in positions of command and those who provided legal cover to torture, and, if found guilty, handed down penalties commensurate with the grave nature of their acts. In this connection, the Committee draws the attention to paragraphs 9 and 26 of its General Comment No. 2;

(c) Provide effective remedies and redress to victims, including fair and adequate compensation, and as full rehabilitation as possible, in accordance with the Committee’s General Comment No. 3 (2012) on the implementation of article 14 of the Convention by State parties (CAT/C/GC/3);

(d) Undertake a full review into the way the CIA’s responsibilities were discharged in relation to the allegations of torture and ill-treatment against suspects during U.S. custody abroad. In the event of a re-opening of investigations, the State party should ensure that any such inquiries are designed to address the alleged shortcomings in the thoroughness of the previous reviews and investigations.”

Remedies and Reparations

Concerning redress to victims, the Committee stated that it “regrets the limited information provided by the delegation on rehabilitation programmes for both domestic and third country victims, or the allocation of resources to support such programmes,” and its further concern “about the situation of certain individuals and groups made vulnerable by discrimination or marginalization who face specific obstacles that impede the enjoyment of their right to redress.” As mentioned above in the section on military accountability, the Committee urged the United States to ensure that “effective reparation, including adequate compensation, is granted to every victim.” And the Committee added in a general section on redress: “The Committee urges the State party to take immediate legal and other measures to ensure that all victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

Guantanamo Bay (including forced-feeding)

The Committee expressed “its deep concern about the fact that the State party continues to hold a number of individuals without charge at Guantanamo Bay detention facilities,” and stated flatly that:

“Notwithstanding the State party’s position that these individuals have been captured and detained as ‘enemy belligerents’ and that under the law of war is permitted ‘to hold them until the end of the hostilities’… indefinite detention constitutes per se a violation of the Convention.”

The Committee also criticized the United States for the conditions of confinement and the treatment of detainees, specifically stating that force-feeding of detainees violates the Convention:

“In this respect, another cause of concern is the repeated suicide attempts and recurrent mass hunger strike protests by detainees over indefinite detention and conditions of detention. In this connection, the Committee considers that force-feeding of prisoners on hunger strike constitutes ill-treatment in violation of the Convention. Furthermore, it notes that detainees’ lawyers have argued in court that force feedings are allegedly administered in an unnecessarily brutal and painful manner.”

The Committee also expressed concern about the lack of efficacy of habeas petitions in the wake of the Supreme Court’s Boumediene decision:

“While noting that detainees held in Guantanamo have the constitutional privilege of the writ of habeas corpus, the Committee is concerned at reports that indicate that federal courts have rejected a significant number of habeas corpus petitions.”

The Committee concluded its section on Guantanamo with a list of action items:

“The Committee calls upon the State party to take immediate and effective measures to:

(a) Cease the use of indefinite detention without charge or trial for individuals suspected of terrorism-related activities;

(b) Ensure that detainees held at Guantanamo who are designated for potential prosecution be charged and tried in ordinary federal civilian courts. Any other detainees who are not to be charged or tried should be immediately released. Detainees and their counsels must have access to all evidence used to justify the detention;

(c) Investigate allegations of detainee abuse, including torture and ill-treatment, appropriately prosecute those responsible, and ensure effective redress for victims;

(d) Improve the detainees’ situation so as to persuade them to cease the hunger strike;

(e) Put an end to force-feeding of detainees in hunger strike as long as they are able to take informed decisions;

(f) Invite the UN Special Rapporteur on torture to visit Guantanamo Bay detention facilities, with full access to the detainees, including private meetings with them, in conformity with the terms of reference for fact-finding missions by Special Procedures of the UN Human Rights Council.

The Committee reiterates its earlier recommendation (CAT/C/USA/CO/2, para 22) that the State party should close the detention facilities at Guantanamo Bay, as instructed in section 3 of Executive Order 13492 of 22 January 2009.”

“The Committee takes note of the explanations provided by the delegation concerning the processes involved in transferring the remaining detainees from Guantanamo Bay detention facilities, and the lifting of the detainee transfer moratorium to Yemen. However, it expresses its concern at the fact that most of the 79 detainees who are currently designated for transfer had already been cleared for transfer five years ago by the Review Task Force. While noting the information provided by the State party on the practice of obtaining torture-related diplomatic assurances, the Committee remains disturbed by reports from non-governmental sources which indicate that some former Guantanamo Bay detainees have experienced abuse during treatment post release (art. 3).

The Committee calls on the State party to ensure that no individual, including persons suspected of terrorism, who are expelled, returned, extradited or deported, is exposed to the danger of torture or other cruel, inhuman or degrading treatment or punishment. It urges the State party to refrain from seeking and relying on diplomatic assurances ‘where there are substantial grounds for believing that [the person] would be in danger of being subjected to torture’ (art. 3). The principle of non-refoulement should always have precedence over any other protection measure.”

In 2006, the Committee expressed concern that the United States “considers that the non-refoulement obligation, under article 3 of the Convention, does not extend to a person detained outside its territory.” In that report the Committee wrote that “the State party should only rely on ‘diplomatic assurances’ in regard to States which do not systematically violate the Convention’s provisions.”

The Committee praised the United States for efforts “to eliminate interrogation methods which constitute torture or ill-treatment.” The Committee, however, stated that:

“Nevertheless, the Committee is concerned about certain aspects of Appendix M of the Army Field Manual Human Intelligence Collector Operations, FM 2-22.3 of September 2006, in particular the description of some authorised methods of interrogation, such as the interrogation techniques of ‘physical separation’ and ‘field expedient separation.’ While noting the information by the delegation to the effect that such practices are consistent with the State party’s obligations under the Convention, the Committee remains concerned over the possibilities for abuse such techniques may entail (arts. 1, 2, 11 and 16).”

The Committee issued detailed set of action items to bring the U.S. into compliance:

“The State party should ensure that interrogation methods contrary to the Convention are not used under any circumstances. The Committee urges the State party to review Appendix M of the Army Field Manual in light of its obligations under the Convention.

In particular, the State party should abolish the provision contained in the ‘physical separation technique’ which establishes that ‘use of separation must not preclude the detainee getting four hours of continued sleep every 24 hours’. Such provision applicable over an initial period of 30 days, which is renewable, amounts to authorizing sleep deprivation –a form of ill-treatment-, and is unrelated to the aim of the ‘physical separation technique’ which is to preventing communication among detainees. The State party should ensure detainee’s needs in terms of sleep time and that sleeping accommodation provided for the use of prisoners is in conformity the requirements of Rule 10 of the Standard Minimum Rules for the Treatment of Prisoners.

Equally, the State party should abolish sensory deprivation in the ‘field expedient separation technique’ aimed at prolonging the shock of capture by applying goggles or blindfolds and earmuffs to generate a perception of separation, which based on recent scientific findings with high probability will create a state of psychosis with the detainee (Daniel C., Lovatt A., Manson OJ. Psychotic-like experiences and their cognitive appraisal under short-term sensory deprivation. Frontiers in Psychiatry; Vol. 5, Art 106:1), raising concerns of torture and ill-treatment.”

In 2006, the Committee had welcomed “the State party’s intention to adopt a new Army Field Manual for intelligence interrogation, applicable to all its personnel, which, according to the State party, will ensure that interrogation techniques fully comply with the Convention.”

Sexual abuse in the US military

The Committee said that it “welcom[ed] the recently increased efforts by the Department of Defense to prevent sexual assault in the military [but] remains concerned about the high prevalence of sexual violence, including rape, and the alleged failure of the Department to adequately prevent and address military sexual assaults of both men and women serving in the armed forces.”

As for action items, the Committee stated:

“The State party should increase its efforts to prevent and eradicate sexual violence in the military by taking effective measures to:

(a) Ensure prompt, impartial and effective investigations of all allegations of sexual violence;

(b) Ensure that, in practice, complainants and witnesses are protected from any acts of retaliation or reprisals, including intimidation, related to their complain or testimony;

(c) Ensure equal access to disability compensation to those veterans who are survivors of military sexual assault.”

Definition and criminalization of torture

While acknowledging that the United States criminalizes acts of torture through various statutes and provides multiple potential avenues for such prosecutions, the Committee expressed its regret “that a specific offence of torture has not been introduced yet at the federal level.” Expanding on why, the Committee said “the introduction of such offence, in full conformity with article 1 of the Convention would strengthen the human rights protection framework in the State party.”

This mirrored language in the 2006 report, which specifically called for a federal crime of torture consistent with article 1 of the Convention, even in light of the United States’ statement that “every act of torture within the meaning of the Convention is illegal under existing federal and/or state law.”

Registration of detainees

In 2006, the Committee’s report stated that the United States “does not always register persons detained in territories under its jurisdiction outside the United States, depriving them of an effective safeguard against acts of torture.” During the oral session earlier this month, the Committee again raised concerns about registration of detainees (for example pages 8 and 42 of the transcript). Today’s report, however, does not mention the issue of registration–neither in the section of the report on “positive aspects” nor in the section on “principal subjects of concern.”

Filed under:

About the Author(s)

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016)
Follow him on Twitter @rgoodlaw.